This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1981

Cir. Ct. No.2009CV3061

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

Deutsche Bank National Trust Company, as

Trustee for HIS Asset Securitization CORP

Trust 2007-NCI,

Plaintiff-Respondent,

v.

James Matson,

Defendant-Appellant,

Legacy Bank,

Defendant.

APPEAL
from an order of the circuit court for Milwaukee County:william
w. brash, III, Judge.[1]Affirmed.

Before Curley, P.J., Fine and Brennan, JJ.

¶1CURLEY, P.J. James Matson appeals an
order denying his motion to enforce a foreclosure judgment.Matson had a mortgage on rental property
through Deutsche Bank, which was later foreclosed upon when he stopped paying the
mortgage.Rather than sell the property
at a sheriff’s sale per the terms of the foreclosure judgment, Deutsche Bank
decided to terminate its lien on the property, forgive Matson’s underlying debt,
establishing free and clear ownership for Matson.This was because Matson—who, despite the
judgment’s indications to the contrary, believed he had no claim to the
property—abandoned the property before the end of the redemption period,
leaving it in a state of disrepair, decreased value, and with outstanding
property taxes and code violations.Matson moved the trial court to force Deutsche Bank to sell the property
rather than give title to him, but the trial court denied the motion.On appeal, Matson argues:(1) the trial court erred in denying his
motion to enforce the judgment because Deutsche Bank was required to sell the
property as a matter of law; (2) the trial court erred by not using “its
contempt authority” to enforce the judgment; and (3) the equities of the case
favor requiring Deutsche Bank to sell the property.We affirm.

Background

¶2In 2006, Matson refinanced a previous loan and received an
adjustable rate mortgage loan for his rental property at 2724 West Auer Avenue
in Milwaukee.The new loan was assigned
to Deutsche Bank, and the adjustable rate was set to apply in early 2008.

¶3In the summer of 2008, after the adjustable rate kicked in,
Matson defaulted on the loan, and in November 2008 Deutsche Bank filed a
foreclosure action.An automatic stay
initially prevented the foreclosure from moving forward because Matson
voluntarily filed a Chapter 7 bankruptcy petition, but the stay was eventually lifted,
and Deutsche Bank commenced foreclosure proceedings against Matson in February
2009.Deutsche Bank elected in its
foreclosure complaint to proceed under Wis.
Stat. § 846.103(2) (2009-10),[2]
with a three-month period of redemption that waived its right to seek a
deficiency judgment against Matson.Deutsche Bank also consented to Matson remaining in possession of the
Property and receiving all rents and profits until the date of confirmation of
the sale by the trial court.

¶4Matson did not contest the foreclosure, and, in August 2009,
the trial court granted default judgment to Deutsche Bank.The trial court’s judgment dictated the terms
of any sale of the property, stating, in pertinent part:

[T]he mortgaged premises cannot be sold in parcels
without injury to the interests of the parties and unless sooner redeemed, said
premises shall be sold at public auction at the direction of the sheriff, at
any time after three months from the date of entry of judgment….[T]he proceeds of [the] sale shall first be
applied to the amounts due [Deutsche Bank] … and … the surplus, if any, shall
be subject to the further order of this court.

The judgment further stated
that Matson was entitled to possession of the premises and “entitled to all
rents, issues, and profits” from the property until “the date of confirmation
of sale.”The judgment also enjoined the
parties from committing waste upon the premises.

¶5Matson believed that his responsibility to maintain the
property was discharged at the time he filed for Chapter 7 bankruptcy and that
the foreclosure judgment transferred title to Deutsche Bank.Matson also believed the trial court’s
judgment compelled Deutsche Bank to sell the property, and that Deutsche Bank
did in fact sell the property at some point after the judgment was issued.

¶6Consequently, Matson abandoned the property and it fell into
a state of disrepair.Public records show
that the tax-assessed value of the property fell from $89,100 in 2008, to $69,000
in 2010, to $44,400 in 2012; and unpaid taxes in the amount of $26,700.35
accrued on the property between 2009 and 2012.[3]Matson began receiving, among other things,
work orders and notice of unpaid taxes from the City of Milwaukee.

¶7Deciding that completing the foreclosure via a sheriff’s sale
and sale confirmation hearing “would leave it worse off financially” given the
property’s condition, Deutsche Bank forewent enforcement of the judgment and
instead recorded a satisfaction of the mortgage on August 27, 2010, with the
Milwaukee County Register of Deeds.The
satisfaction released Deutsche Bank’s lien on the property, forgave the
underlying debt, and established Matson as the owner.

¶8Meanwhile, Matson’s problems regarding the property continued
to mount.As a result of the unpaid
property taxes and building code violations, Matson was arrested.Matson, in turn, asked Deutsche Bank to
conduct a sheriff’s sale of the property.Deutsche Bank informed Matson that he owned the property free and clear
of Deutsche Bank’s lien and that Deutsche Bank had no intention of conducting a
sheriff’s sale.

¶9Matson then, on March 29, 2012, filed the motion that is the
subject of this action:a “motion to
enforce judgment” asking the court to compel Deutsche Bank to proceed with a
sheriff’s sale and confirm the sale within the next thirty days.The motion also sought compensation for
injuries from Deutsche Bank’s lack of enforcement of the foreclosure judgment
and fees incurred from the City’s lawsuit.

[U]ntil such time as the court
confirms the sheriff’s sale of the property, the ownership interest in the
property remains with the property owner….Accordingly, regardless of the language in the judgment of foreclosure
stating that a property “shall be sold,” a mortgagor has the right to redeem
foreclosed property at any time prior to a sale; as such, the “sale” occurs
only upon confirmation, at which time title vests in the purchaser and
extinguishes the mortgagor’s right of redemption.

That nowhere in Chapter 846 is
there a provision that establishes a deadline by which a plaintiff who obtains
a judgment of foreclosure must advance a property to sheriff’s sale, but rather
only mandates a redemption period.In
other words, the statutes presume a plaintiff … will advance the property to
sheriff’s sale; the parties here have provided no authority, and this Court was
able to find no authority, that addresses this particular situation in which a
plaintiff has no intention of proceeding with the second step of the
foreclosure proceedings.

That although this Court does
not favor or endorse this tactic of the Plaintiff [Deutsche Bank], it
recognizes that, in the current economic climate, with the influx of foreclosed
properties in lenders’ inventories … this may be deemed to be a “reasonable
business decision” and a necessary strategy….

(Citations omitted; some
formatting altered.)

¶11Matson appeals.

Analysis

¶12Matson raises three issues on appeal.He argues:(1) the trial court erred in denying his motion to enforce the judgment
because Deutsche Bank was required to sell the property as a matter of law; (2)
the trial court erred by not using “its contempt authority” to enforce the
judgment; and (3) the equities of the case favor requiring Deutsche Bank to
sell the property.We discuss each issue
in turn.[4]

(1) The trial court properly
denied Matson’s motion to enforce the judgment
because Deutsche Bank was not required
to sell the property as a matter of
law.

¶13Matson first argues that the trial court erred in denying his
motion to enforce the judgment because Deutsche Bank was required to sell the
property as a matter of law.Specifically, Matson argues that Wis.
Stat. § 846.103(2) requires a plaintiff in a foreclosure action to
sell property at the end of the three-month redemption period, and that
Deutsche Bank was therefore required to sell the Auer Avenue property instead
of giving him the title free and clear of all obligations.Matson further argues that this conclusion is
supported by the purpose of foreclosure law, as well as the two-step
foreclosure process outlined in Shuput v. Lauer, 109 Wis. 2d 164,
171, 325 N.W.2d 321 (1982).[5]

¶14“‘Generally, mortgage foreclosure proceedings are equitable in
nature’”; but to the extent resolution of the issues requires statutory
construction, “‘they present questions of law, which we review de novo.’”SeeHarbor
Credit Union v. Samp, 2011 WI App 40, ¶19, 332 Wis. 2d 214, 796 N.W.2d
813 (citation omitted; emphasis added).When reviewing statutes, our inquiry “‘begins with the language of the
statute.’”SeeState ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted).We give statutory language “its common,
ordinary, and accepted meaning,” and give “technical or specially-defined words
or phrases” “their technical or special definitional meaning.”See id.We must also keep in mind that “[c]ontext is important to meaning.So, too, is the structure of the statute in
which the operative language appears.”Seeid., ¶46.Therefore, we interpret statutory language
“in the context in which it is used; not in isolation but as part of a whole;
in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.”Seeid.;
see alsoHarbor Credit Union, 332
Wis. 2d 214, ¶23 (“In the mortgage foreclosure context, interpretations of
statutes must be based on ‘the context of ch. 846 as a whole,’ because ch. 846
‘sets up a comprehensive scheme of foreclosure, including the procedural and substantive
requirements for obtaining a deficiency judgment for the unpaid balance on the
debt remaining after a foreclosure sale.’”) (citation omitted).

¶15After reviewing the applicable law and standard of review, we
conclude that Deutsche Bank was not required to sell the property.We turn first to the August 2009 order—i.e., the order that Matson asked the
trial court to enforce in his motion.We
agree with Deutsche Bank that the most reasonable reading of the trial court’s
determination that the “premises shall
be sold at public auction at the direction of the sheriff, at any time after
three months from the date of entry of judgment” (emphasis added) is that it
directs Deutsche Bank to proceed in a certain manner if the property is in fact
sold.See State ex rel. Marberry v.
Macht, 2003 WI 79, ¶¶15-17, 262 Wis. 2d 720, 665 N.W.2d 155 (use of the
word “shall” can be directory, not mandatory).The August 2009 order describes the sheriff’s sale process should it
actually occur; it does not force Deutsche Bank to conduct a sale, nor does it
prohibit it from releasing its lien on the property and forgiving the
underlying debt as it did in this case.

¶16Contrary to what Matson argues, Wis.
Stat. § 846.103(2) does not require Deutsche Bank to sell the
property at the end of the three-month redemption period.Like the trial court’s order, the statute,
the pertinent portions of which we provide below, describes a particular process
should a sheriff’s sale actually occur:

[T]he plaintiff in a foreclosure action of a mortgage … may elect by
express allegation in the complaint to waive judgment for any deficiency
which may remain due to the plaintiff after sale of the mortgaged premises
against every party who is personally liable for the debt secured by the
mortgage, and to consent that the
mortgagor, unless he or she abandons the property, may remain in possession of
the mortgaged property and be entitled to all rents, issues and profits
therefrom to the date of confirmation of the sale by the court. When the
plaintiff so elects, judgment shall be entered as provided in this chapter,
except that no judgment for deficiency may be ordered nor separately rendered
against any party who is personally liable for the debt secured by the mortgage
and the sale of the mortgaged premises shall be made upon the expiration of 3
months from the date when such judgment is entered. Notice of the time and
place of sale shall be given under ss. 815.31 and 846.16 and may be given
within the 3-month period except that first printing of the notice shall not be
made less than one month after the date when judgment is entered.

(Emphasis added.)

¶17The statute does not force a plaintiff to sell the property in
question.Indeed, Matson points to no
provision in Chapter 846, and no relevant case law, establishing a deadline by
which a plaintiff who obtains a judgment of foreclosure must advance a property
to a sheriff’s sale.While the statutory
language of Wis. Stat. § 846.103(2)
would appear to presume a plaintiff such as Deutsche Bank would sell property
at a sheriff’s sale, it does not require that it do so.

¶18Matson’s arguments regarding the mechanics of the foreclosure
process and expedited foreclosure process set forth under Wis. Stat. § 846.103(2) are
similarly unpersuasive.A lender’s
ability to recover on a mortgaged property under Chapter 846 involves a
two-step procedure.Bank Mut. v. S.J. Boyer Const.,
Inc., 2010 WI 74, ¶27, 326 Wis. 2d 521, 785 N.W.2d 462.The first step is obtaining a judgment of
foreclosure and sale.Id.The judgment “‘determines the parties’ legal
rights in the underlying obligation and in the mortgaged property and thus
determines the default, the right of the mortgagee to realize upon the
security, the time and place of sale of the security and the notice required,
and the right of the mortgagee to a judgment of deficiency.’”Glover v. Marine Bank of Beaver Dam,
117 Wis. 2d 684, 693, 345 N.W.2d 449 (1984) (citation omitted).The judgment does little more than compute
the amount owed to the mortgagee.See Marshall
& Ilsley Bank v. Greene, 227 Wis. 155, 164, 278 N.W. 425
(1938).“The second step carries into
effect and enforces the judgment of foreclosure and sale.”S.J. Boyer Constr., 326 Wis. 2d
521, ¶27.“[T]he court orders
confirmation of the sale, computes the amount of any deficiency, and enters a
judgment for the deficiency.”Id.As for the expedited process, § 846.103(2)
“shorten[s] the period of redemption in a complicated, and costly
time-consuming procedure,” seeGlover,
117 Wis. 2d at 694, which benefits the lender, and it benefits the borrower by
absolving him or her from responsibility for any deficiency, seeS.J. Boyer Constr., 326 Wis. 2d
521, ¶¶68, 71-72.Again, while the
two-step procedure explained above and the expedited process set forth in §
846.103(2) presumes that a lender will sell mortgaged property, we cannot
conclude that there is any mandate that the property be sold, much less that—as
Matson contends—it be sold immediately upon the expiration of the three-month
redemption period.

¶19Indeed, adopting Matson’s interpretation would result in
adverse policy consequences.For
example, as Deutsche Bank notes, requiring a sheriff’s sale simply does not
make sense in circumstances where it is in neither the lender’s nor borrower’s
interest to do so:for instance, when
there is a post-judgment loan modification between the lender and borrower, or when
the borrower pays the debt shortly after the expiration of the redemption
period.Moreover, requiring a sheriff’s
sale essentially puts the borrower in control over the aggrieved lender’s
recovery, which, as Deutsche Bank notes, creates an incentive for a borrower to
commit waste.

¶20For the foregoing reasons, we conclude that Deutsche Bank was
allowed, but not required, to sell the Auer Avenue property as a matter of law,
and consequently, the trial court properly denied Matson’s motion.

(2) The trial court did not err
in refusing to use its “contempt authority” because
selling the property was not required as a
matter of law.

¶21Matson also argues that the trial court erred by not using “its
contempt authority” to enforce the judgment.Specifically, Matson claims that by electing not to conduct a sheriff’s
sale, Deutsche Bank “intentionally disobeyed” the August 2009 judgment of
foreclosure and that the trial court should have therefore found Deutsche Bank
in contempt.

¶22We reject this argument, however, because it rests on a faulty
premise. As we explained more fully
above, Deutsche Bank did not disobey
a court order by deciding not to conduct a sheriff’s sale.Therefore, Matson’s argument fails.

(3) Equity does not favor Matson in these circumstances.

¶23Matson additionally argues that the trial court “should have
used its equitable discretion to grant” his motion to force Deutsche Bank to
conduct a sheriff’s sale.He believes
the equitable nature of foreclosure actions should not have left him with the
responsibility of maintaining the property during the redemption period and
likewise prohibited Deutsche Bank from transferring title to him.Matson highlights all the hardships he
incurred after the entry of the August 2009 judgment of foreclosure:numerous building code violations, a lawsuit brought
by the City, anxiety-induced medical issues, and arrest.Further, he argues these hardships, in
combination with his decision to “surrender the property in bankruptcy,” his
decision to not take advantage of his redemption period benefits, and the
property’s depreciable effect on surrounding properties should have provided a
sufficient basis for the court to force Deutsche Bank to advance to a sheriff’s
sale.

¶24We disagree.The
judgment of foreclosure made clear that Matson was entitled to all rents,
issues, and profits deriving from the property throughout the redemption period;
and it made clear that Matson was not to commit waste on the property.While Matson may have been operating under
the mistaken belief that either his Chapter 7 bankruptcy and/or the August 2009
judgment of foreclosure essentially transferred title of the property back to
Deutsche Bank and absolved him from all responsibility for the property, that
simply was not the case.Moreover, we
cannot assume, as Matson does, that forcing Deutsche Bank to conduct a
sheriff’s sale would solve Matson’s problems.Even if Deutsche Bank were to conduct a sale, there is no guarantee the
property would be sold.The
circumstances before us are undoubtedly unusual, but they do not mandate the
relief Matson requests.His appeals to
equity must be denied.

By the Court.—Order affirmed.

Not
recommended for publication in the official reports.

[1] The
Honorable William W. Brash, III, issued the order at issue in this case:the order denying Matson’s motion to enforce
the judgment.The judgment Matson sought
to enforce, a judgment of foreclosure, was issued by the Honorable John J.
DiMotto.

[2] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.

[3] Although
Deutsche Bank does not provide a citation to these figures beyond noting that
they are public records, we rely on them here because Matson does not dispute
them.SeeCharolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d
97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“‘Respondents on appeal cannot
complain if propositions of appellants are taken as confessed which they do not
undertake to refute.’”) (citation omitted).We do, however, remind Deutsche Bank that Wis. Stat. § 809.19(1)(d) requires that all factual
allegations be supported by citations to the record.We also remind the parties that if a party
wishes us to take judicial notice of a public record, the party must provide a
citation whereby we can verify the public record.See,
e.g., Questions, Inc. v. City of Milwaukee, 2011 WI App 126, ¶30
n.10, 336 Wis. 2d 654, 807 N.W.2d 131; Wis.
Stat. § 902.01.

[4] To
the extent that Matson raises an argument that we do not address, it is because
the issue is not dispositive and does warrant individual attention, seeState v. Waste Mgmt. of Wis., Inc.,
81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978), or is inadequately briefed, see Schonscheck
v. Paccar, Inc., 2003 WI App 79, ¶20, 261 Wis. 2d 769, 661 N.W.2d 476.

[5] In
his brief, Matson repeatedly cites to Wis.
Stat. § 846.103(4).Subsection (4), however, does not exist; and the language on which
Matson relies is from § 846.103(2).We
therefore assume that Matson is referring to § 846.103(2), and conduct our analysis
under that subsection of the statute.